In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Wednesday, 5 July 2017

Open Culture and Copyright: CREATe IP Summer Summit 2017

The
CREATe IP Summer
Summit 2017 took place over the course of last week, Monday 26 June –
Friday 30 June. In this inaugural year, the theme of the Summit was ‘Open
Science and Open Culture’. A range of speakers from around the globe presented
on an array of Open Innovation issues, with attendees travelling from the National
Law University in Delhi, IP Australia, the American University and the
University of Trento in Italy. Organised by Dr Sukhpreet
Singh – Senior Lecturer and CREATe Programme Leader – the Summit explored
the benefits of developing openness within our culture, particularly within the
global south. Dr Singh is an expert on market based approaches to IP protection
and exploitation, and this shone through in the interdisciplinary reach of the
Summit, with speakers from industry, government and academia in attendance.

Background

The
granting of property rights in intellectual creations is intended to facilitate
scientific and creative progress. The archetypal expression of this approach is
probably to be found in Article I, § 8.01.8 of
the U.S. Constitution:

Congress is empowered
“to promote the progress of science and the useful arts, by securing, for
limited times, to authors and inventors the exclusive right to their respective
writings and discoveries.”

The
rationale behind intellectual property protection is that our society benefits
if authors and inventors can generate profit from their work. If authors and
inventors were not able to generate profit from their endeavours, why would
they go to the trouble and expense to innovate at all?

A
view that qualifies the property-based approach posits that where intellectual
property rights are exercised in an over-restrictive manner, they can
potentially inhibit the advancement of
culture and knowledge, thereby undermining the very purpose for which these
rights exist. Since all creative innovations are built upon work that has come
before, the cultural and scientific advancement of our species relies upon
accessing and using existing works.

Creating a counterpoint
to an ‘all rights reserved’ culture

The
open movement seeks to facilitate the dissemination of knowledge. It can be
understood as a cultural shift against an ‘all rights reserved’ culture (where
lawfully accessing and using works can pose difficulties for follow-on
innovation), to a culture where use of copyrighted material is promoted through
licensing or copyright exceptions and limitations. The ‘open’ paradigm is still
evolving, with the concept potentially conveying varying meanings depending upon
the context. In academia, the open science movement is focussed on making
research available to anyone with an Internet connection, as also promoting the
transparency of scientific methods. The Creative Commons movement is
focussed on creating a standardised legal structure that allows copyright
holders to make their works available to content users on a royalty-free basis.
In Government, ‘openness’ can mean the use of policy tools that encourage
licensing practices:

The
Orphan Works
Licensing Scheme in the UK is a tool which facilitates the licensing of
copyrighted works for which the rights-holder cannot be found. This licensing
scheme reduces the risk associated with making use of orphan works and thereby
potentially increases the likelihood of these works being used.

IP
Australia’s IP
Toolkit for Collaboration provides template contracts, guides and
collaboration agreements that support collaboration between entities engaged in
innovation activities. This tool helps those participating in collaborative
projects to develop clear guidelines with partners, thereby promoting open
innovation.

Policy for open access in
the post-2014 Research Excellence Framework has been a driver of open
access in the academic environment. This policy requires that certain research
outputs be made open access to be eligible for submission to the Research
Excellence Framework, a framework which is used to measure the quality of
research in higher education institutions within the UK. By correlating
measures of excellence with a necessity for researchers to take an open access
approach, this policy drives the goals of the open access movement.

“The
Internet has fundamentally changed the practical and economic realities of
distributing scientific knowledge and cultural heritage. For the first time
ever, the Internet now offers the chance to constitute a global and interactive
representation of human knowledge, including cultural heritage and the
guarantee or worldwide access.”

The
Internet has been the major driver behind the Open Innovation movement. Our
ability to share creative works around the globe instantaneously has the
potential for our society to work together on a collaborative basis that has
never before been possible, and these international efforts have endeavoured to
enshrine into law values that will promote the development of culture and
science.

The Summit

The
Summit ran the gamut of what ‘openness’ can mean within society, as well as the
potential benefits it brings. Peter Jaszi from the
American University gave the keynote of the Summit, presenting on fair use as a
driver in promoting openness within the U.S. jurisdiction. Professor Jaszi
argued that the fair use doctrine makes the U.S. economy far more
competitive than jurisdictions that employ a closed system of fair dealing.
This is exemplified in text and data-mining; the fair use doctrine provided
sufficient flexibility to allow for text and data-mining activities to take
place in the U.S., whereas within the E.U. for example, text and data-mining
exceptions are still being discussed after a dialogue of numerous years (for
more, see this
IPKat post). It is the flexible nature of the fair use doctrine that
promotes a more ‘open’ agenda within the U.S. economy, while jurisdictions that
employ a closed list of exceptions and limitations may have a tendency of
lagging behind when new innovations are made.

Professor Bajpai of
the National Law University of Delhi presented on a hugely ambitious open
education project being undertaken in India called ePathshala. The ePathshala resource
provides free access to educational materials to anyone with an Internet
connection. There is also epg-Pathshala,
which provides resources for students of post-graduate courses across a
bewildering array of disciplines – readers can feel free to take a look at
resources provided for students wishing to study intellectual property law here. Professor
Bajpai linked the ePathshala programmes to the Indian government’s obligations
under the various international efforts towards Open Access mentioned above
(the Budapest Open Access Initiative, et
al.), as well as Article
19 of the Universal Declaration of Human Rights:

“Everyone
has the right to freedom of opinion and expression; this right includes freedom
to hold opinions without interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers.”

The
Open Science movement received particular attention over the Wednesday of the
week-long Summit, with Arul George
Scaria from the Centre for Innovation, Intellectual Property and
Competition with the National Law University of Delhi presenting on open access
in science. For Dr Scaria, open science encompasses not only freely accessible
scientific papers but also transparency in research methods and data
collection. To this end, Dr Scaria discussed Retraction Watch – a blog that monitors
retractions and revisions of previously published scientific papers.
Transparency and repeatability in data collection are essential factors that
will ensure the continued progression of science, with these qualities being
more readily attainable in an Open Access environment.

Chris Banks from
Imperial College London discussed her driving role in the development of the UK
Scholarly Communications Licence (“UK-SCL”). The current practice in academic
publishing is that universities generally do not claim copyright in the academic
output of staff, with copyright in articles instead being assigned to publishers
by academics. This approach entails a number of drawbacks, including
restricting the author’s use of his or her own work and making compliance with
funder Open Access mandates more cumbersome. In contrast, the UK-SCL would see
research organisations retaining a non-exclusive licence to works their
academics have generated. The benefits of this licence are numerous, including
reducing the necessity for authors to rely of copyright exceptions in order to
make use of their own academic works, academics will not have to negotiate with
publishers directly and academic output will be freely available faster than
ever before. Developments with the UK-SCL will be moving quickly in 2017, and
the results should be interesting to observe.

Margaret Haig from the
UK Intellectual Property Office (“UKIPO”) discussed the planning and
implementation of the UK Orphan Works
Licensing Scheme. Orphan works are copyright works for which one or more of
the rights-holders is either unknown or cannot be found. The genesis of the UK
Orphan Works Licensing Scheme emerged from the Gowers
Review (2006) and the Hargreaves
Review (2011). A rather pleasant anecdote describing the value that Orphan
Works can create for society can be found on page 70 of the Gowers Review:

“Many
works that lie unused could create value. For example, the film It’s a Wonderful Life lost money in its
first run and was ignored by its original copyright owners. When the owners
failed to renew their copyright in 1970, it was broadcast on the Public
Broadcasting Service channel in the USA. It is now a family classic, and worth
millions inprime time advertising revenue.
The book The Secret Garden, since copyright has expired, has been made into a
movie, a musical, a cookbook, a CD-ROM version, and two sequels. For works
still in copyright, if users are unable to locate and seek permission from
owners, this value cannot be generated.”

It
is the purpose of the UK Orphan Works Licensing Scheme to reduce the risk
associated with making use of orphan works and consequently creating value
within society, rather than merely allowing these works to languish in disuse.

The
week-long Summit covered a whole host of important and interesting topics which
would be impossible to capture in a single blog post. Over the coming weeks, this
writer (hopefully working collaboratively with speakers from the Summit) will
be exploring and developing further some of the issues raised in a series of
blog posts that will examine the current ‘open’ paradigm and how this interacts
with copyright law. It is hoped that this series will generate discussion
amongst 1709 readers, as well as creating a legacy resource for the 2017 CREATe
IP Summer Summit.

The
open graphic is reproduced with the kind permission of Libby Levi.

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